HAQ SHAMS UL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1266/2018

[2019] HKCFI 2551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1266 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Pakistan who had repeatedly overstayed in or illegally entered Hong Kong, with the last occasion in June 2015 when he sneaked in from Mainland China when he subsequently surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by some disgruntled customers who had been cheated by his elder brother of their money under some fraudulent scheme and disappeared afterwards.  The Applicant was then released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in District Attock, Punjab, Pakistan.  In 2002 he first came to Hong Kong as a visitor but overstayed and was subsequently arrested by police for breaching condition of stay for which he was convicted and sentenced to prison for two months.  Upon discharge from prison he raised a torture claim, but while being released on recognizance pending determination of his claim, he was arrested again on 12 March 2008 for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for two months.

3.  Upon discharge from prison he withdrew his claim, but reopened it several months later, which was eventually determined and rejected by the Immigration Department on 13 June 2012, and with his appeal subsequently also dismissed by the Torture Claims Appeal Board (“the Board”), he was repatriated to Pakistan on 21 August 2012.

4.  Upon returning to his home district in Pakistan, he learnt that while he was away in 2003, his elder brother had cheated his customers of their money under some fraudulent scheme and had disappeared without a trace, and when some of the customers had come to demand that the Applicant should compensate their losses for his brother and had made death threats against him, and when the police treated the dispute as a private matter and failed to take any action against those customers, the Applicant departed Pakistan in June 2013 for China where he stayed for two years.

5.  In June 2015 he sneaked into Hong Kong from the Mainland, and after surrendering to the Immigration Department on 8 July 2015, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 9 December 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those customers cheated by his brother upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention on the part of those customers to harm or kill him for his brother’s action, that in any event it was a private personal monetary dispute without any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other areas of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for those disgruntled customers of his brother to locate him. 

8.  The Applicant then lodged an appeal to the Board against the Director’s decision,and for which he attended an oral hearing on 10 April 2018 before the Board during which he however declined to give evidence or to answer questions from the adjudicator for the Board.  On 1 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board was unable to attach any credence to the Applicant’s account of events prior to his departure from Pakistan after he declined to answer questions from the adjudicator during his appeal hearing so as to clarify and explain various issues raised of his claim, that his claimed ill-treatment did not attain the minimum level of severity under any of the applicable risks, and that in any event that state protection as well as reasonable internal relocation within Pakistan would be available to the Applicant that it would not be unreasonable for him to move to a different part of Pakistan where he would be able to re-establish himself without any risk of being located by his brother’s disgruntled customers that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) lack of legal representation in his appeal before the Board;

 (2) lack of language assistance for not providing him with translation of the documents in his hearing bundle or with an interpreter to assist in his appeal before the Board;

 (3) failure on the part of the Director to properly balance the use of COI in assessing his claim; and

 (4) failure on the part of the adjudicator to translate and explain to him the Board’s decision which is in English that he cannot understand. 

11.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, but declined to give evidence or answer any questions from the adjudicator during his appeal hearing before the Board despite being invited and was advised to do so. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.  As for his complaint under Ground (2) of not being provided with a translation of the documents in the hearing bundle, most of which he should be well familiar with such as his NCF which was completed on his own instructions to his lawyer from DLS,while the others such as the Director’s decision had earlier already been provided to him when he was still legally represented, and that he was assisted by an interpreter throughout his oral hearing before the Board but during which he never raised any such issue to the adjudicator.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

14.  Regarding his complaint in Ground (3) over the Director’s use of the COI, it was just a broad and vague assertion without any particulars or specifics or elaboration by the Applicant that I do not find any basis or merit in this complaint of his, and in the absence of any factual error in those COI being clearly and properly identified by him, I do not find this ground reasonably arguable either.

15.  As for Ground (4) in which he complains of not being provided with any translation of the Board’s decision, it cannot per se be considered as a proper ground for his challenge,nor is it reasonably arguable for his intended application.

16.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1